Formation of the Concept of Istihsan in Islamic Law

Saim Kayadibi

Abstract Istisn (juristic preference) has played a crucial role inintellectual heritage of Islamic law and the development ofIslamic legal reasoning by inserting a judges contribution intojudgments based on the primary principles of securing ease andavoiding hardship. During the process of formulating istisn,the main factor was qiys (analogy). If the result of qiyscaused hardship for the people, istisn was applied to givepreference to any unconsidered evidence that it could possiblyeradicate the hardship. No technical definitions of istisn havereached us from the very early period Islamic legal history,although it has been used from the beginning. This paperinvestigates empirically the application of istisn over timeand critically discusses its application in Islamic law with aspecial emphasis on itsi relationship with qiys.

Keywords: Istisn (juristic preference); Islamic Law;

Legal Philosophy; qiys (analogy).

Introduction One of the main reasons for humanitys creation is to bringabout the best judgment for people: God is beautiful and likesbeautiful deeds,407 to serve Him first and then to discover thegreatness of God through investigating His creations408 and

laws. According to the Prophet (pbuh), God is a secret treasure

who created the creation (universe) in order to be wellknown.409 Thus, God created every beauty in the universe sothat humanitiy could know Him. Laws and norms exist, and it ishumanitys role to develop them so that justice and equity willreign. This idea, in fact, caused a great judicial system to bedeveloped that would dispense judgements as close to perfect aspossible. Not all of the given judgments lead to the cases exactnature, however, and thus an unexpected result or judgmentmay not be righteous. Naturally, as all judges are only human,they are always liable to making mistakes. Regardless of howmuch they devote themselves to formulating a correct judgment,sometimes this cannot occur if the evidence is imprecise or thejudge draws incorrect conclusions from the evidence presented.The end result, in either case, would be less than ideal. Investigating a righteous judgment was already embedded inthe notion of human being despite the evil apprehensionsalways disturb each person. Istisn entered the judicial sphere in order to reveal theunseen justice that leads to an understanding of the lawordained by the Lawgiver, Who provides the divine guidancesought by all Muslims. It is also the lex divina, which is knownsolely to God. The judiciary, whether Muslim or non-Muslim,uses istisn to ensure justice and equity. In general, the notionof equity in western law is the same as it is in Islamic law410;

however, in the latter equity is embodied in istisn, which is

derived from asan (to deem [something] good).411 Basicallyistisn is a departure from a ruling of qiys (analogy) infavour of another ruling which is considered preferable.412 Anydeparture from an obvious analogical reasoning (qiys jal)413 toan implicit analogy must be based on the legally recognizedsources, for the judges personal desire has no legal standing. Inaddition, choosing one ruling over another should result in easeand comfort, and the outcome cannot contradict the revelationsvalues and established rules.414 While human factors have always been present in everyaspect of the laws development, Muslim jurists and scholarshave also played an instrumental role. The human factor hasformulated all of its principles, systems of judgment, andrulings. Thus they all function based on the actions of humanjudges. To be accepted as a principle, istisn had to passthrough three significant stages: formation, development, andmaturation. This paper investigates its legal development,questions its traces in the formation and the development states,and shed lights on its strong connection with qiys.

Sleuthing for the Origin of Istisn

The concept of istisn can be traced back to the time ofrevelation. Yet its exact use and implementation, in terms of

being an independent source of law, only occurred later. A

precise definition for it cannot be found among the scholars orthe madhdhib (schools of law). Most scholars had their ownspecific definitions that, despite their differences, were veryclose to each other. All of these various definitions may bederived from that of Karkh (d.340/952), which is arguablymore comprehensive than the others. Among the anaf jurists,Karkh, Sarakhs (d.483/1090), Ja (d.370/981), Bazdaw(d.482/1089), Nasaf (d.710/1310), and Ibn Humm(d.861/1457) formulated definitions. Jurists from the otherschools remained flexible. Of course those jurists living in theninth century CE were influenced by their predecessors. Thejurists mentioned above lived at widely different times.415 As regards its conceptual application, we cannot saywhether istisn was implemented during the Prophets (pbuh)lifetime as a source of judiciary or not, because at that time thesources of legislation were confined to the Quran, the Sunnah,and personal opinion (ray) with the permission of a competentauthority. Moreover, the principles of ul al-fiqh (legal theory)had not been systemized yet, although Umar (d.23/643)416, IbnMasud (d.32/652), Al (d.40/660), Ibn Abbas (d.68/687), andother Companions employed notion of istisn in theirjudgments. According to Khudar (d.1927), during the earlyyears of Islamic judiciary many important leaders appointed tosolve problems and eliminate obstructions to legislation appliedthis unnamed method to issues facing the young community. This was certainly the case with Umar at the first stage, aswell as Ibn Abbs, Rabah (d.136 AH), and Ibrhim al-Nakh

(d.96/714) at the second stage.417 For them, the fundamental

sources of Islamic law were the Qurn and the Sunnah, thatlatter of which was developed via the personal judgments ofcompetent, guided, and intellectual jurists who interpreted thosesources according to the needs of the age. Serious considerationof the fundamental sources can produce new meanings that, inturn, give rise to new obstacles and different circumstances, allof which challenge jurists to devise appropriate solutions. Inother words, after the legal principles have been formulated,those jurists who used istisn as a method of legislation werenot engaged in bidah (innovation). In fact, they had onlycodified a method that had been employed since Islams earlyyears.418 The answer of Muadh ibn Jabal (d.18/639) to the Prophetsquestion of how he reached his legal judgments could be anearly signifier of istisns use. The Prophets objective was toteach those Companions he appointed as judges how to use theirown discretion and understanding to formulate correctjudgments. Most importantly, he wanted to show them thatcritical thinking was essential for deriving such judgments. Theaccount of their conversation reveals that the Prophetsquestions were concerned with Muadhs ability to reason. Hisfinal question is most instructive What will you do if you donot find guidance in the Sunnah of the Apostle of God and inGods Book?419 The Companions reply was also impressive Ishall do my best to form an opinion and spare no pains.420 This

pleased the Prophet (pbuh), who showed his satisfaction with it

by thanking God.421 Clearly, personal opinion and discretion are necessary toolsfor deriving a correct judgment. For example, personal decisionwas evident at the Battle of Badr not as a judicial term but as aconceptual matter. The Prophet (pbuh) chose a particular battleposition for his army. Hubbb ibn al-Mundhr, however,considered the place unsuitable and asked him if it had chosenby revelation or his own judgment (ray). Upon learning that theProphet (pbuh) had relied on his own judgment, Hubbbsuggested a more suitable place. The Prophet replied You havemade a suggestion with your opinion (laqad asharta bi al-ray).422 Consequently, personal interpretations gainedcredence at a very early time. Such examples inspired jurists todevelop or formulate their understanding of religion and expresstheir feelings without any fear or obstruction. It could beconcluded that the examples given here indicate that the use ofpersonal opinion became a basis for the subsequent use ofistisn. The Companions use of ray continued after the Prophets(pbuh) death, as in the so-called case of the donkey (al-himariyyah). This case, which involved Umars ruling on theinheritance of two half-brothers, represents an exact usage ofistisn. In short, a woman died and left behind her husbandand mother, two half-brothers, and two full brothers. Umarinitially applied the usual ruling, based on the Propehts (pbuh)established precedent: the ahl al-fari (those portions forheirs designated in the Qurn)423 and the ahl al-aabah (the421 Al-Mward, Al-Akm al-Sulniyya wal-Wilyah al-Dniyyah (Eygpt:n.p., 1909), 55.422 Ibn Hishm, Al-Srat al-Nabawiyyah, ed. Muaf al-Saq, Ibrhm al-Abyr, Abd al-fi Shalab (Beirut: Dr al-Khayr, 1992), 2:210-11.423 For more details, see Qurn 4:1-40. Saim Kayadibi 158

residual heirs).424 The first group has clear priority over thesecond in the distribution of such property, and so Umar gaveone-half of it to her husband, one-sixth to her mother, one-thirdto her uterine brothers, and nothing to her half-brothers(considered residual heirs). The half-brothers objected Supposeour father was a donkey (himr). Do we not still have the samemother as the deceased? This question initially caused Umarto revise his ruling on the grounds of equity and justice. Butthen he found a stronger reason, one that he used to depart fromthe established ruling and to devise a new ruling. Iin otherwords, he istasana (approved as the better judgment): one-third of the remaining property should be distributed equallyamong both full- and half-brothers after the husband and motherhad received their allotted shares.425 This decision, which appears to be a basic application ofistisn, brings to mind Karkhs definition, which differs fromthe established one and is based on considerations of justice andequity. Umar made qiys with regard to the Prophets (pbuh)precept (athar), and the half-brothers objection caused him toreconsider and thus depart from qiys and move towardistisn. Was his judgment, we ask, based solely on personalopinion, or did he seek to conform to the spirit of the Sharah?When faced with such issues, he applied Ab Bakrs practice oflooking for the solution first in the Qurn and the Sunnah. If,after much scrutiny and deliberation, no solution could be

derived, he then devised a ruling based upon his personal

understanding of what best accorded with the Sharah.426 There is also another example: Umars decision not toamputate the hand of the thief caught during a year of famine.427Instead, he suspended the prescribed punishment428 on thegrounds that this event429 was an exceptional circumstance. Healso did not amputate the hand of a slave who had stolen a she-camel.430 Moreover, after one battle he distributed spoils amongnew Muslims who lived in the conquered land instead of amongthe Companions, despite of opposition of Abd al-Rahman ibnAwf and others, in the interest of public welfare.431 Thesecases signify that departing from established rulings to obtainjustice, equity, and the Muslims general welfare can beconsidered compatible with the principles of Islamic law. Interms of legal perspectives, Umar did not use ijtihd432 tooppose the Sharah by attempting to alter its obligatory (far)principles, but rather to discover its implicit aims. As indicated earlier, it is quite difficult to determine theapplications of istisn during Islams early years. Umarsdecisions have enabled researchers to acquire some indicationof how it was implemented at a time when it was mainlyunderstood of departing from an established rule for the sake ofequity and the public interest. Right from its initial appearance,however, istisn could affect judicial and legal proceedings. Infact, both the Umayyad (661-750) and Abbasid (750-1258)

might have used it to influence social and political issues.

Throughout most of the Umayyad period, provincial governorswere entrusted with administering justice. The rulers alsoappointed particular judges to act as the governors agents invarious regions.433 Umar appointed many Companions as legal practitionersin various regions. When Shuray b. al-arith (d.78/697) wasappointed a judge of Kfa under the guidance of Ab Msa al-Ashar (d.44/664), Umar advised him to follow his personaldiscretion after resorting to the Quran and the Sunnah: Thinkagain and again over a point so long as it remains doubtful inyour mind a point which you do not find in the Quran or inthe Sunnah of the Prophet. Get yourself acquainted withprecedents and similar cases; then weigh up the matters (qis al-umr). Then adopt the one that is more favorable in the eyes ofGod and identical with the truth in your opinion.434 The opinions, judgments, and thoughts of Ibn Masd andAl influenced the legal methods and doctrines of the Kfasjurists.435 Moreover, the opinions of Iraqi jurists were likely tocoincide with the decisions of the Prophet (pbuh) on manyoccasions, just as they coincided with the opinions of IbnMasd.436 Accordingly, the same notion and perception were

held to have been transferred from the Prophet (pbuh) to the

Successors via the Companions and the Traditions (adth).The Successors inherited the Companions role, with suchscholars as Alqamah bin Qays (d.62/681), al-Aswad bin Yazd(d.75/694), Shuray bin rith (d.78/697), al-Shbi ab Amr(d.103/721), Ibrhim al-Nakh (d.95/713), and ammad binSulaymn al-Ashar (d.120/737) all of whom lived in Irq, thescholarly environment in which Ab anfah developed hislegal school. He studied fiqh under ammad b. Sulaymn, astudent of Ibrhim al-Nakh. Ibrhim learned fiqh from theassociates of Ibn Masd who, in turn, were students of suchCompanions as Umar, Ibn Masd, and Al.437 Their opinionswere not expressed arbitrarily; rather, they were inspired by theQurn and the Sunnah, both of which they used as the mainsources for their decisions. By doing so, they ensured that theirrulings did not contradict either one.

The formation of istisn

Although the concept of istisn has been used from Islamsearliest days, no universally accepted definition was everdevised for it. Its founder, Abu anfah and the early anafjurists Abu Yusuf (d.182/798) and al-Shaybn (d.189/804),employed it but never provided a specific definition. In essence,they used it to secure ease and avoid hardship438 withoutviolating the fundamental principles of Islamic law. As the legal sources were being formulated, Iraq wasbecoming a centre of science and art as well as of judicialapplication. Hence the concept of istisn found an atmosphere

Muwa (Lucknow: 1297 and 1306) with a commentary by Abd Allahi

that encouraged its development. Irqi jurists used both ray andqiys, which they saw as interesting intellectual challenges,given that they were more interested in the theory of the law.The Medina School, on the other hand, focused on the lawsactual practice.439 According to Amad assan, the termistisn was not used in its technical sense until the era of theaforementioned Irq scholars.440 The idea was prevalent injuristic practice when we look at the application of istisn inthe early anaf School.441 While Irq jurists applied it bydeparting from established rulings, they did not explain whythey did so.442 Abd al-Ramn b. Hujayrah (between 69-83/688-702), Thawbah b. Nimr (between 115-20/733-37), andKhayr b. Nuaym (between 120-27/737-44),443 all of whomhanded down rulings based on personal reasoning, neverreferred to istisn in its strictly technical sense. In terms of technical use, no authentic source indicates thatthe form of istisn was used before Umar ibn Abd al-Azz.Iys b. Muwiyah (d.122/740), the judge of Bara (between101-02/719-20, stated Use qiys as a basis for judgment so faras it is beneficial to people. But when it leads to undesirableresults, use juristic preference (fastasin).444 In other words,if the existing juristic rulings are not enough to prevent evil, useistisn to arrive at more effective ones. According to him, allcourt judgments should be based on istisn: I understand thatthe judgments given in the courts should be in accordance with439 Kamal A. Fruk, Islamic Jurisprudence (Karachi: Publishing House,1962), 24.440 asan, Early, 145.441 Kayadibi, Doctrine of Istihsan, 153.442 asan, Early, 146.443 Schacht, Origins, 100-01.444 Abd al-Ramn Ibrhm Ab Sulaymn, Al-Fikr al-Ul (Jedda: Dr al-Shurq, n.d.), 152; Muwaffaq b. Amad Makk, Manqib al-Abu anfah(Beirut: n.p., 1981), 1:84; Ja, Al-Ful, 4:229. Pool Finance Economic System: L, D, A of Civilization 163

istisn.445 Muwaffaq b. Amad al-Makk (d.568/1198) adds

If qiys leads to undesirable results, you should apply the moreaccurate of the two opinions.446 The courts judgments have toensure that all rulings must be in line with the public welfare(malaah) and provide justice and equity. Although istisn appears during the first quarter of thesecond Islamic century, this term was clearly used before Abanfahs time and was not confined to him. When Iys b.Muwiyahs use of this term is compared to Ab anfahs, agreat deal of similarity can be seen. For example, both scholarsused it to avoid even the possibility of harming the publicinterest and the negative results that often occurred when qiyswas applied incorrectly. However, istisn owes its veryexistence to qiys and would not have superseded it had thelatter not proven to be ineffective in some cases. On the other hand, the use of istisn appears in a differentguise during the early Abbsd period, namely as istiwb(discretion). Ibn al-Muqaffa (d.137/756) observed thatdiscretion must be taken into account when there is noestablished ruling and where guidance from the Quran and theSunnah is not forthcoming. In exceptional circumstances, theguardians of the Sharah should be aware that qiys sometimesresults in unfair and unjust results. Therefore, istiwb isnecessary to ensure justice. He ruled that unreserved adherenceto qiys sometimes leads to injustice, and that the law needed tobe flexible to prevent an unjust ruling based upon that particularlegal tool.447

Despite the absence of a clear definiton and elaboration, the

validity of istisn was never challenged, as is clear from therulings of Umar and, later on, Iys b. Muwiyah, whodeclared that qiys is valid so long as it benefits the people. Ifthis is not the case, then it must be abandoned so that the way toreach an appropriate solution is always left open. Istisn became a matter of great dispute after Ab anfahproclaimed Qiys is such and such, but we apply istisn.Unfortunately, he never explained why he applied those of hisjudgments that were based on istisn.448 On the other handanafi jurists acted upon a adith, provided that they wereconvinced that it was both reliable and proven, even if itcontradicted their schools principles. The application of thisruling is called istisn.449 The following statementsdemonstrate that Ab anfah based his rulings on adith, bethey the Prophets reported acts or words. Apart from propheticadith, he also relied on the practices of the Companions andthose who followed them. If it had not been for precedents(athar), I would have judged here according to qiys and If ithad not been for the sake of riwyah (transmitted adith), Iwould have judged the case by qiys.450 Ibn azm (d.456/1064) suggests that the term istisn firstappears in the third generation after the Prophet (pbuh),451 for

he discovered no proof of its use before Ab anfah. In fact,

he states that the anafis say Qiys is such and such, but weapply istisn. He adds that even Imm Mlik performedistisn on occasion.452 Schacht (d.1969) mentions Ibn al-Muqaffas views, reiterating that the use of ray and istisnmight remove the undesired results of qiys.453 Goldziher(d.1921) claims that the term istisn was first used by Abanfah, despite Schachts claim that a similar method andconcept existed before him. Schacht claims that Ab anfahspupil Ab Ysuf was the first to employ the technical use ofistisn.454 We do not have Ab anfahs works as evidence;however, we do have the works of his pupils, especially those ofal-Shaybn, who attributed the term to Ab anfah.455 Thisfact clearly indicates the weakness of Schachts claims. Hence,this particular term was first used by Ab anfah.456 An alternative view, one proposed by Khaddr andLiebesny, is that the Mliks practiced istisn but that it is nowmore common among the anafs.457 This might be correct;however, more supporting evidence is needed to support thisclaim and somehow it is anachronic. When the concept of

istil is taken into consideration, it appears that the Mliks

used istisn at a much later time but called it istil instead.No trace of istil has been found before the fifth/eleventhcentury.458 In a nutshell, although the concept of istisn was used inthe very early days of juristic legislation, my research leads meto believe that this term was not used in its technical sensebefore Iyas bin Muwiyah.

Arbitrary law-making Traditionalists always oppose that which is new, for this isone of humanitys dogmatic features. Thus it is no surprise thatmany scholars rejected the very concept of istisn before theytook the time to learn its exact nature. The Hanafs did notinvent a new religious creed, and yet the Shfi jurists,especially Imm Shfi, vociferously attacked the concept anddeclared that Shafi school did not consider it a basis of Islamiclaw; rather, they dismissed it as arbitrary law-making inreligion. He went so far as to declare Whoever approves ofjuristic preference is making himself the Lawmaker.459However, his (Imm Shfi) dictum goes on to say that al-Shfi was unaware of its true meaning and thus had judged theissue rather hastily. This misunderstanding may be due to the

concepts different meanings, one of which is indeed connected

to the notion of personal desire.460 On the other hand, ImmMlik (d.179/795) gave high priority to the concept Istisnrepresents nine-tenths of human knowledge.461 Nevertheless, anaf scholars consider most criticism ofistisn the product of misunderstanding, and the imputation toAb anfah this is because of ulterior motives. But despite thiscriticism, they view it as a valid source of the Sharah, interalia, a basis for formulating legal rulings. However, it isdifficult to believe that Ab anfah would have abandoned aruling established on true shar foundations for his personalpreference.462 In fact, anafs are adamant that istisn is asource of law and has nothing to do with ruling according topersonal desire. They understand istisn as acting according toone of the two forms of qiys. Istisn may also be acted uponbased on athar (adth), ijm, or necessity. In other words, itsrejection is unwarranted since, as the anafs say, casesresolved by it are resorted to when they are opposed to qiysjal (explicit analogy), thereby making the departure from qiysa priority. This means that istisn is agreed upon when it isopposed to qiys jal and is acted upon if it is stronger thanqiys jal. Therefore there is no point in denying it,463 for

understanding the role of istisn requires that qiys must be

performed. If not, istisn cannot be resorted to. In short, istisn can be defined as passing over a previousruling on a similar issue because particular evidencenecessitates doing so. But this can be done only if the juristrules in such a way. In addition, it does not matter whether therelevant evidence is na (textual), ijm (consensus), darrah(necessity), urf (custom), malaah (benefit), qiys khaf(implicit analogy), or otherwise, and irrespective of whether themethod used to establish the earlier ruling was established bydall m (general evidence), qidah fiqhiyyah (jurisprudencerule) or qiys zahir jaly (apparent clear analogy).464 This is theanaf and Mlik (as well as others) meaning of istisn.

Departure from qiys

Departing from the ruling arrived at by qiys in favor of astronger dall (evidence), contradictory to the first, is deemedpreferable to another ruling based on the legally recognizedsources of Islamic law. Islamic legal theory is, in general, basedon four sources465: the Qurn, the Sunnah, ijm, and qiys, allof which are unanimously accepted by all Sunn legal schools.

464 Shabn Zaki al-Dn, Ul al-Fiqh al-Islm (Cairo: University BookHouse, 1964-65), 144-45.465 The Quran and the Sunnah are the two main sources of Islamic legaltheory. The majority of jurists, however, believe that Islamic law is based onfour sources. It took jurists considerable time to prove, through these twosources, that ijm is a valid source of law and that any ukm (ruling) basedon it should be accorded the status of the ukm of God. Qiys wassuccessfully used to deduce the law from the Quran and the Sunnah. Thelaws deduced via qiys and ijm depend on evidence from the two mainsources. Pool Finance Economic System: L, D, A of Civilization 169

However, Sh and hir legal theory are not included within

this unity.466 The Qurn is the first source of law for Muslims who seeketernal guidance (lex divina). If one finds the answer therein,there is no need to resort to other sources. If this is not the case,one should consult the Sunnah, then ijm, and only then qiys.The adth narrated from Mudh ibn Jabal (d.18/640)467 istaken as a basis for inferring rulings. Technically, according to the ul (juristic) definition, qiysis the extension or application of a Sharah value from anoriginal case (al) to a new one (far) that has the same effectivecause (illah). The original case is regulated by a given text (theQurn and/or the Sunnah), and qiys seeks to extend the sametextual ruling to a new case.468 In such a case, human judgmentis taked with identifying a common illah. Once this has beenaccomplished, the rules of qiys necessitate that the text-basedruling be followed without any interference or change. In otherwords, the new case must not be covered by na or ijm andmust not alter the law of the text, which would mean that qiyswould overrule na.469466 Imran Ahsan Khan Nyazee, Theories of Islamic Law (Delhi: n.p., 1996),131.467 See Ab Dwud, Sunan, trans. Amad asan (Lahore: Sh. MuammadAshraf, 1984), 3:1019, hadith no. 3585.468 Al-mid, Al-Ikm Ul Al-Akm, ed. Abd al-Razzq Aff, 2d ed.,part 3 (Beirut: Maktabah al-Islmi, 1402/1982), 186; Shawkn, Irshd, 198;Kaml, Principles, 198.469 For example, Quran 5:90 elaborates briefly upon deducing the ruling(ukm): O you who believe! Intoxicants (all kinds of alcoholic drinks), andgambling, and al-ansb (idols), and azlm (arrows for seeking luck ordecision) are an abomination of Satans handiwork. So avoid (strictly all)that (abomination) in order that you may be successful. Drinking wine isclearly forbidden. If this prohibition is extended by analogy to nabdh, theoriginal case (al) would be that the Quran forbids wine. The parallel case(far) is nabdh. The cause (illah) is intoxication, which is common to bothcases, and the rule of law of the original case (ukm) is prohibition. Thus Saim Kayadibi 170

Besides the four components of qiys, the anaf jurist

Bazdawi (d.482/1088) confined it to illah. Both he and mid(d.631/1233) opine that the result of qiys, namely, the ukm al-far (the ruling extended to the new case), should not beincluded in the components (arkn) of qiys. On the other hand,Isnaw includes the ukm al-far in the components of qiys.470Scholars categorise qiys into different types depending upontheir assessment, which is based on the strength or weakness ofthe illah.471 In fact, the type related to istisn and the scope ofthe research is, as regards its clarity, is qiys jaly (obviousanalogy) and qiys khaf (latent, hidden analogy).472 The formermeans that one cannot differentiate (nafy al-friq) between theoriginal case and the parallel case or one that the possibility of

nabdh is also forbidden because of the same cause, which is intoxication,

differentiating is weak.473 The latter means that the possibility

of differentiating between the original and the parallel case isstrong.474 Removing any degree of uncertainty in the qiys khafbetween both cases is accomplished by means of presumption(ann). Qiys khaf and qiys al-adn475 are significantlyparallel. In fact, anaf jurists used qiys khaf as istisn,albeit with a name different, when they abandoned the obviousanalogy due to an evidence that was stronger (aqw) than theother.476 According to Ibn Taymiyya (d.728/1328), doing so isnot acceptable because the divine law must be free from internal

473 This is when the illah is common to both cases, as deduced by analogy.For instance, Quran 4:25 proclaims If they commit illegal sexualintercourse, their punishment is half that of free women. The Quranic textprescribes half the punishment for a guilty bondswoman (slave women).This rule will also apply to a male slave, by analogy, if they commit illegalsexual intercourse (zin); the punishment is fifty lashes. Making the analogythat the bondman (slave) should receive the same punishment as thebondswomen accords with the Prophets practice. Therefore the equationbetween the two cases is obvious and the disagreement between them isremoved by clear evidence.474 This may be illustrated by referring to the two types of wine: nabdh(from dates) and khamr (from grapes). The rule of prohibition is analogicallyextended to nabdh, despite some difference that might exist between thetwo. This is when the effective cause is less evident in the parallel case thanin the original case. The prohibition of nabdh, which is based on theanalogy of prohibiting wine and employing the same punishment fordrinking nabdh, falls under the category of qiys. In this example, theintoxication of nabdh is less in severity than that of wine. See in Shawkn,Ab Al Badr al-Dn Muammad bin Al, Irshd al-Ful il Taqq al-aqq min Ilm al-Ul (Cairo: n.p., 1937), 222; Ibn Qayym, Ilm, 1:178.See Kaml, Principles, 215 and asan, Analogical Reasoning, 83.475 Qiys adn (inferior analogy) is based on the causes strength orweakness. See Isnaw, Nihyt, 3:33; mid, Al-Ikm, 3:22; Ibn Abd al-Shakr, Musallam, part 2, 320; Ibn Amr al-ajj, Al-Taqrr, 3:221;Baidhaw, Al-Ibj, 3:18.476 Bukhr, Kashf, part 2, 1122; Taftazn, Talw, 2:81; Ibn Abd al-Shakr, Musallam, part 2, 320. Saim Kayadibi 172

contradiction. Thus it may be only considered under the concept

of specifying the ratio legis (takhss al-illah).477 The principle of malaah is involved in this departure. Infact, istisn represents nothing more than preferring theprinciple of malaah to qiys.478 As such, it is not a judgmentbased merely on ray and personal malaah, but a method ofapplying the Sharah and the maqid al-mmah (generalpurposes), because one who performs istisn must consider theSharahs overall purpose. For example, performing qiys in aparticular case would cause one to avoid malaah and bringabout mafsadah (harm) from a different angle.479 In unexpectedsituations, istisn eventually replaces qiys.480 Additionally,according to al-Karkh, any departure must be based on aparticular piece of evidence that warrants moving from anestablished ruling to a different ruling on a similar case. Thepurpose of the stronger reason or evidence requires that thejurist depart from the former ruling. This may be illustrated by the following example: If a groupof people break into a house, steal various items, have oneperson carry all of him, and tell him to take them outside whilethe others carry nothing, what should happen to them if they arecaught? According to qiys, only the person who carries theitems should be punished. Istisn, however, would punish all

of them.481 Or consider a case in which there are two

contradictory al (original cases): The first case involves agroup of men who encourage one of their members to rape awoman. In this case, all of the jurists agree that only the actualrapist is to be punished. This ruling based on qiys, which isopposite to the ruling of istisn. In the second case, a group ofpeople gather together with the intent to attack, rob, and thenkill people. In this case, all of the jurists would agree to applythe relevant text-based penalty to all of them.482 Bringingistiwb (discretion) into the judgment, it could be argued thatcomparing house robbery to highway robbery is a clearersolution than comparing it to rape.483 Departing from one caseand moving to another one because of the presence of a strongerreason is, according to Ibn Qudmah al-Maqdis (d.620/1223),called istisn.484 On the other hand, the Shfi jurist Shrz (d.476/1083)says If anaf and Karkh (d.340/952) say that Istisn is thegiving of a ruling with the stronger reason rather than theweaker reason, then we agree with it, and therefore the disputebetween us have been solved.485 After quoting Karkhsdefinition, al-Ghazl (d.505/1111) writes that there is nodispute against the definition.486 While citing Karkhsdefinition, Sarakhs opines that the precedent which is set aside

by istisn normally consists of an established qiys that may

be abandoned in favour of the superior proof, namely theQurn, the Sunnah, darrah, or a stronger qiys.487 Karkhsdefinition has been criticized for giving a role to takh(particularizing the general) and naskh (abrogation) even thoughthey have nothing to do with istisn.488 Muammad b. usaynBait (d.1354/1935) says that if Karkh definitely meant such aparticularization, then they would be right to accuse him;however, he continues, Karkh actually meant theparticularization of qiys by the evidence of qiys khaf, na,ijm, and so on. Istisn might be considered part of takh,but can in no way be connected to concept of naskh, which isconfined to the revelation. Istisn seeks to move fromdifficulty to ease, a process in which naskh has no role,489 andserves as the cutting edge between qiys and istisn.According to Ibn Taymiyya, qiys does not require that theillah be specificed, whereas istisn does.490

Conclusion Linguistic meaning does not necessarily signify a termstechnical sense; it may, in fact, connote totally a differentmeaning, one that depends in which the term is used andintended to have it indicated to something or somebody forspecific sciences. Any term used in a technical sense must beconsidered according to its scope and understanding, as well asthe judicial terms.

Making law, especially, requires competency in the relevant

fields. In an attempt to block jurists from putting themselves inthe place of God, Islamic law contains certain controllers(awbi) designed to point out the limits connected with thisactivity. Despite of all the controllers, rigidity, sensitivity,charges, accountability sides, expenditure of efforts to arrive atrighteous judgment, solving human problems, necessitatingeasiness and fairness for human beings through making newjudgments and even trying to do so are persuaded by God viathe sayings of the Prophet (pbuh); investigating a righteousjudgment is vis--vis reality to arrive at equity and fairness inorder to gain the pleasure of God with His consent.Nevertheless, we have to remember that human beings, some ofwhom are judges, are imperfect and thus can make mistakes. Ifa ruling is improper or has the potential to engender inequityand injustice, it can be appealed. In such a case, the concept ofistisn justifies the formulation of a new judgment that canbetter ensure equity and justice. This is not a new phenomenon in Islamic law, for even theCompanions engaged in it. The examples presented aboveindicate the significance of the concept of istisn and its role,as well as how it was developed over time. The notion ofistisn has existed since the beginning of the revelation.During the first quarter of the second Islamic century, its basicformulation appeared. According to Khudar (d.1927), the earlyyears of the Islamic judiciary saw many important leaders whoapplied istisn, even though no term existed for it. Thefundamental sources of Islamic law (viz., the Quran and theSunnah), were developed by such scholars as Umar (the firststage), and then, during the second stage, by Ibn Abbs(d.687), Rabah (d.136/753), and Ibrhim al-Nakh(d.96/714), all of whom relied to one degree or another upon Saim Kayadibi 176

their personal opinions to meet the needs of people and the

requirements of the time. The Companions and the Successors of the Companionscontinued to use ray, and the different schools of Sunnijurisprudence that gradually appeared adopted it. Even thenotion of istisn had been used in that era, even though theterm was not used before Umar b. Abdul-Azizs rule (r.99-101/717-19), however, the findings of the use of istisn of Iysb. Muwiyah, who was the judge of Basra (between 101-02/719-20) was the exact term which had been used in thejudiciary later period after formation, indicate that istisnstechnical term begins with him as he implied that when theresult of qiys leads to undesirable then the juristic preferenceistisn would be used based on his saying when it leads toundesirable results then use juristic preference (fastasin).Therefore, according to the research and due to not havingfurther evidence to deny the claim that the term istisn was notused in its technical sense before Iyas bin Muwiyah(d.122/740). On the other hand, Ibn al-Muqaffa (d.137/756) used theclosely related term istiwb (discretion) in the early Abbasdperiod when he noted that that discretion must be taken intoaccount in cases where there is no established ruling. Yet theterm of istisn had been used among the jurists, there had notbeen any disputes occurred among the jurists till Ab anfahsfamous saying, qiys is such and such but we apply istisn,appeared. Despite of the use of istisn by Ab anfah, henever used personal opinions on self desire or in vain, yet heused to rely on the Prophetic adith and on the practices of theCompanions and those who followed them. Accusing Hanafs of creating new religion or makingarbitrary law-making in the religion forced the scholars Pool Finance Economic System: L, D, A of Civilization 177

especially Hanafs to identify istisns accurate role and

definitions in the judiciary; they spent much of time to defendthemselves from the place of lawmaker and tried to prove thatistisn is a valid source of law and it is not solely an ad hocmethod; despite Shaf school did not give any interest toistisn as a basis of Islamic law, Mlik school, however, gaveextra attention to elevate its meaning and role with the famoussaying Istisn represents nine-tenths of human knowledge491of Imm Mlik (d.179/795). Nonetheless, anaf scholarsconsidered most criticism of istisn as the product ofmisunderstanding, and the accusation Ab anfah of this isbecause of ulterior motives. And also despite of the criticism,they see istisn as a valid source of sharah, inter alia, a basisfor the formulation of legal rulings. In terms of istisns originality whether istisn is a part ofqiys or an independent source of law, the qiys as it wasidentified in the discussion that it is the extension or applicationof sharah value from an original case (al) to a new case (far),where the latter has the same effective cause (illah) as theformer. The original case is regulated by a given text (theQurn and the Sunnah), and qiys (analogy) seeks to extend thesame textual ruling to a new case.492 However, among thetypology of qiys, the type which was related to the concept ofistisan and the scope of the research is of that in its clarity asqiys jaly (obvious analogy) and qiys khaf (latent, hidden

analogy).493 In qiys khaf (latent, hidden analogy) the

possibility of differentiating between the original and theparallel case is strong, hence the anaf jurists, developed theversion of qiys khaf and used it through a new inference andnamed it as istisn despite there are some allegation that it is aqiys khaf infact it is however a product of qiys; despite of thefact that it is considered by anafs, Mliks and some othersamong different schools of thought as an independent source ofIslamic law in the judiciary.